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US Supreme Court Hears Prescription Data Mining Law Arguments

Written by Dianne Bourque

On Tuesday, the US Supreme Court heard arguments (transcripts here) about whether or not the Vermont data mining law violates free speech by preventing pharmaceutical manufacturers and their sales people from obtaining data on physician prescription habits.  Vermont currently bans the sale, transmission, and use of prescriber-specific data for marketing purposes unless physicians have provided their permission.  New Hampshire and Maine have similar laws. 

Typically, data mining companies buy physician prescription information from pharmacies.  The information does not include patient information but does permit drug representatives to obtain detailed knowledge about a physician’s prescribing habits in order to tailor sales pitches, identify physicians who do not use a product and monitor changes in prescribing habits.  Several data mining companies as well as the Pharmaceutical research and Manufacturers of America (PhRMA) argued that the law interfered with the right to commercial speech, which is protected by the first amendment.  They also argued that the law jeopardizes patient safety by prohibiting drug reps from educating physicians about products.  The state of Vermont argued that its law gives physicians control over the use of their prescribing histories and control over marketing directed at them.  They also argued that the goal of pharmaceutical company drug mining is sales – not physician education.  Vermont's argument was supported by Attorneys General for 13 states , the United States (see link below), The New England Journal of Medicine, and the AARP, among others. 

The Supreme Court is expected to decide the case later this year.  

Related links after the jump


Amicus briefs:   Amicus Brief US Chamber of Commerce

National Association of Chain Drug Stores Amicus Brief

Amicus Brief - United States

Press Coverage

New York Times

Washington Post 

Boston Globe

USA Today

Los Angeles Times

National Public Radio

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Cynthia J. Larose

Member / Co-Chair, Privacy & Cybersecurity Practice

Cynthia J. Larose is Chair of the firm's Privacy & Cybersecurity Practice, a Certified Information Privacy Professional-US (CIPP-US), and a Certified Information Privacy Professional-Europe (CIPP-E). She works with clients in various industries to develop comprehensive information security programs on the front end, and provides timely counsel when it becomes necessary to respond to a data breach.